183 Ga. 402 | Ga. | 1936
Jordan Realty Company returned divers pieces of property for taxation in Bibb County for the years 1931 and 1932, among which was the property in controversy purchased by the Mortgage-Bond Company of New York, on January 9, 1933. On December 21, 1931, execution issued for the taxes assessed against all the property returned by Jordan Realty Company for that year, and similar execution for 1932 taxes was issued on December 20, 1932. On September 6, 1933, both fi. fas. were levied upon the property so purchased. After advertisement the property .was knocked off at sheriff’s sale to Bibb County for the principal amount of the tax fi. fas., plus interest and costs. The sheriff executed a deed to the county, but it has never been delivered. The county has not paid the amount of its bid or any
1. If, under the Code, § 92-5712 (Ga. L. 1931, pp. 122, 123, as amended, Ga. L. 1933, p. 50), the petitioner would have been entitled'to pay the pro rata part of the taxes assessed against the property purchased by petitioner subsequently to the issuance of the tax fi. fas., it had, on the levy of these fi. fas. upon the property purchased, an adequate remedy at law by claim under the Code, § 92-7801. First National Bank & Trust Co. v. Phœnix Mutual Life Insurance Co., 179 Ga. 74 (4) (175 S. E. 361). The failure to employ such remedy at the proper time does not afford petitioner ground for equitable relief. Code, § 55-103; Dulin v. Caldwell, 28 Ga. 117; Moore v. Atlanta, 70 Ga. 611; Bostwick v. Perkins, 1 Ga. 136, 137; Gentle v. Atlas Savings & Loan Asso., 105 Ga. 406 (31 S. E. 544); 21 C. J. 47, § 23, n. 7.
2. If the levy was excessive and for that reason void, the petitioner had an adequate remedy at law under a claim filed pursuant to § 92-7801, supra. Harris Orchard Co. v. Tharpe, 177 Ga. 547 (4) (170 S. E. 811, 88 A. L. R. 1212); Brantley v. Hicks, 177 Ga. 812 (171 S. E. 451); Lightner v. Belk, 178 Ga. 766 (2) (174 S. E. 349); Douglas v. Jenkins, 146 Ga. 341, 343 (91 S. E. 49, Ann. Cas. 1918C, 322).
3. No reason being alleged why the petitioner failed to pursue its legal remedy at the proper time, the petition failed to set forth a cause of action for the relief prayed for, and the judge erred in
4. The judgment being reversed on the grounds set forth above, it is not necessary to pass upon the grounds of special demurrer.
Judgment reversed.